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Regarding May’s “Speech Code of the Month”: A Clarification

We at FIRE pride ourselves on our attention to detail and our steadfast commitment to getting the facts right. So when we make a mistake—which is very rare, happily—we think it’s important to address our error as quickly and transparently as possible.

That’s why I must slightly correct the record regarding the University of Louisville’s speech codes, highlighted last week as our Speech Code of the Month for May 2008. Our selection was based largely on Louisville’s Procedures on Speech and Distribution of Literature in Public Areas, which we believed regulated student speech. In fact, the policy applies to non-community members (i.e., not students and faculty) wishing to engage in expressive activity on campus. While the restrictions are extraordinarily broad and arguably still highly inappropriate on a college campus (requiring "that public speech and discourse on campus shall be civil," for example, is likely still unconstitutional, even when applied solely to non-community members), they do not apply to students and faculty, as assumed.

That clarification aside, however, Louisville remains our Speech Code of the Month for May 2008. That’s because Louisville’s policies that do regulate student speech are equally worthy of condemnation, and for much the same reason. For example, Louisville’s Code of Student Conduct prohibits "[e]ngaging in intentional conduct directed at a specific person(s) which seriously alarms or intimidates such person(s) and which serves no legitimate purpose." This doesn’t pass constitutional muster because it’s wildly overbroad: the First Amendment protects speech that "seriously alarms" listeners, and speech doesn’t need to serve a "legitimate purpose" to warrant protection. (Besides, who would possibly be the arbiter of such "legitimacy"?) For example, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Supreme Court held that speech is protected even when its purpose is to "induce a condition of unrest, create dissatisfaction with conditions as they are, or even stir people to anger," a ruling that certainly covers speech that "seriously alarms" listeners.

Next, Louisville defines "hostile environment harassment" as "unwelcome comments or conduct that have the purpose of… creating an intimidating, hostile or offensive working or learning environment that a reasonable person would find threatening or intimidating." Like we explained in our initial post on Louisville, this definition just doesn’t come close to meeting the best definition of peer-on-peer harassment supplied by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999), which only prohibits expressive conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit."

Further, the Court didn’t include anything about "intimidating" or "hostile" behavior in the Davis definition of harassment. If harassment in an educational setting were judged by Louisville’s definition, students would have to guess at whether their speech was "intimidating" or "hostile" enough to result in punishment. (Schools may ban intimidating expression that rises to the level of a "true threat"—i.e., "where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death," as defined by the Supreme Court in Virginia v. Black, 538 U.S. 343, 359 (2003). But that’s a very specific legal standard, and one that Louisville’s definition simply does not meet.) This kind of vagueness chills speech, and thus is constitutionally impermissible. Not to mention the fact that Louisville’s definition does not require the speech in question to be "severe" or "pervasive," which means that a single isolated incident could be deemed "harassment" by university administrators.

But Louisville’s speech code doesn’t stop there, unfortunately. Indeed, I would be remiss not to point out a couple more highlights, like the fact that Louisville’s "Cardinal Creed" requires students to pledge to "commit to a code of civilized behavior," with all the attendant constitutional problems thereby presented. Or that Louisville’s residence hall policies require students to report flyers they deem to be "of an offensive or derogatory nature" to the "proper authorities." So much for the marketplace of ideas.

For all these reasons, the University of Louisville is still the Speech Code of the Month for May 2008. If you believe that your college or university should be a Speech Code of the Month, please email speechcodes@thefire.org with a link to the policy and a brief description of why you think attention should be drawn to this code.